Whittaker v Child Support Registrar [2000] FCA 1899 (22 December 2000)

Last Updated: 8 January 2001

FEDERAL COURT OF AUSTRALIA

Whittaker v Child Support Registrar [2000] FCA 1899

MARK ALAN WHITTAKER v CHILD SUPPORT REGISTRAR and DONNA RENNIE WHITTAKER

Q 79 OF 2000

DRUMMOND J

22 DECEMBER 2000

BRISBANE (VIA VIDEO LINK TO CAIRNS)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 79 OF 2000

BETWEEN:	MARK ALAN WHITTAKER APPLICANT
AND:	CHILD SUPPORT REGISTRAR FIRST RESPONDENT DONNA RENNIE WHITTAKER SECOND RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	22 DECEMBER 2000
WHERE MADE:	BRISBANE (VIA VIDEO LINK TO CAIRNS)

THE COURT ORDERS THAT:

1. The applicant pay the respondent's costs of and incidental to the proceedings, including reserved costs, save only for the respondent's costs incurred subsequent to attending to receive judgment on 30 November 2000.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 79 OF 2000

BETWEEN:	MARK ALAN WHITTAKER APPLICANT
AND:	CHILD SUPPORT REGISTRAR FIRST RESPONDENT DONNA RENNIE WHITTAKER SECOND RESPONDENT

JUDGE:	DRUMMOND J
DATE:	22 DECEMBER 2000
PLACE:	BRISBANE (VIA VIDEO LINK TO CAIRNS)

REASONS FOR JUDGMENT

1 On 30 November last, in a reserved decision, I dismissed the applicant's application for prerogative writs directed to the Child Support Registrar. Though instructed to ask that the question of costs be adjourned, the solicitor who then appeared for the Registrar failed to do that. The Registrar now seeks costs. The order dismissing the application has not been perfected and the Court thus has an extensive discretionary power to make a costs order now, quite apart from that conferred by the "slip rule", O 35 r 7(3) the Federal Court Rules.

2 There is no suggestion in the applicant's detailed written submissions on costs that he has suffered prejudice due to this oversight on the part of the Registrar's solicitor. The applicant relies on what I said at par [5] of the judgment to the effect that there is a public interest in settling the question of the authority of the Parliament to confer on the Registrar the decisional authority which the applicant questioned in the proceedings before me; he goes on to submit that for that reason costs should not be ordered against him despite the general rule that costs ordinarily follow the event.

3 The ambit of the traditionally worded general discretionary power conferred on courts to award costs, of which s 43(2) the Federal Court of Australia Act 1976 (Cth) is an example, has recently been considered by the High Court in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. The High Court, by a majority, restored the decision of the trial judge to make no order as to costs. This decision, and the trial judgment, which is reported as Oshlack v Richmond River Shire Council and Iron Gates Developments Pty Ltd (Judgment on Costs) (1994) 82 LGERA 236, were relied on by the applicant. Gaudron and Gummow JJ, at 84, said of the argument put to them that "public interest litigation" raised special considerations in relation to the award of costs:

"That is a `nebulous concept' unless given, as the primary judge did in the present case, further content of a legally normative nature. It also tends, in this litigation, to distract attention from the legal issue which is at stake.

The true issue here is not whether this was `public interest litigation'. Rather ... the question is whether the subject matter, the scope and purpose of s 69 [the traditionally worded costs power there in question] are such as to enable the Court of Appeal to pronounce the reasons given by Stein J to be `definitely extraneous to any objects the legislature could have had in view' in enacting s 69."

4 Their Honours held that the trial judge's discretion had not miscarried and that he was entitled to reach the conclusion he did and make no order as to costs. In his judgment, the trial judge referred to the "traditional rule" that costs follow the event, to the fact that characterisation of proceedings as "public interest litigation" could be a relevant factor in finding special circumstances sufficient to justify departure from the traditional rule though it was not of itself enough to warrant that. He referred also to the appellant's motivation in pursuing the litigation being to ensure obedience to environmental law in circumstances in which he had nothing to gain personally from the litigation, to the fact that there were a significant number of members of the public who shared the stance of the appellant in opposing the grant by the council of development consent there challenged, and finally, that the basis of the appellant's challenge to that decision was arguable and had resolved significant issues in relation to the future administration of the environmental legislation upon which the appellant relied.

5 In my opinion the applicant should be ordered to pay the respondent's costs of and incidental to the proceedings, including reserved costs, save only for the respondent's costs incurred subsequent to attending to receive judgment on 30 November 2000.

6 The respondent has been wholly successful in the litigation and it is not a consideration disentitling him to costs that he is a public official who has never personally been at risk of having to pay any of his costs of the proceedings. As I said in my reasons, the applicant did raise a question of public interest concerning whether the Registrar had been invalidly vested with federal judicial power. This constitutional challenge was not unarguable. But it was, in the context in which it was raised, but one of a number of arguments put forward by the applicant to advance his own personal financial interests. The litigation was mounted by the applicant for what I described in par [39] of my judgment as "tactical forensic reasons". There is no evidence, only the applicant's submission, that there are others who share his concern about the Registrar's authority.

7 In these circumstances the fact that in running, ultimately unsuccessfully, litigation to advance his own personal financial interests the applicant relied on as one of his arguments a constitutional challenge to the authority of the Registrar to make the determinations in respect of child support which the applicant sought to overturn, is not sufficient to justify depriving the Registrar of his costs.

8 I do not consider that the failure of the Registrar's solicitor to raise the question of costs when judgment was delivered (nor the complaint made by the applicant about the manner in which the Registrar's solicitor served the submissions on costs on him) are sufficient, either of themselves or in conjunction with the "public interest" argument, to justify refusing the Registrar his costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 22 December 2000

Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	There was no appearance.
Date of Judgment:	22 December 2000